§ 41 — Meaning of “close associate” of licensee or applicant

41.—(1) For the purposes of this Act, a person is a “close associate” of an applicant or a licensee if —(a)

the person alone —(i)

holds 5% or more of the total equity interests in; or

(ii)

is in a position to control 5% or more of the voting power in,

the applicant or licensee if it is an entity, a business trust or trust; or

(b)

the person holds or will hold any relevant position in the business of the applicant or licensee relating to any regulated activity.

(2) A reference in this Division to the control of a percentage of the voting power in an entity, business trust or trust is a reference to the control, of that percentage of the total number of votes that might be cast in a general meeting of the entity, a general meeting of the unitholders of the business trust, or a general meeting of the beneficiaries of the trust, as the case may be.

(3) In ascertaining a person’s control of the percentage of the total number of votes that might be cast at a general meeting mentioned in subsection (2), the number of votes that the person is entitled to cast at the meeting by reason of having been appointed a proxy or representative to vote at the meeting is to be disregarded.

(4) In this Part —(a)

a reference to the business or undertaking of a business trust is a reference to the business or undertaking carried on by the trustee‑manager of the business trust on behalf of the business trust; and

(b)

a reference to the business or undertaking of a trust is a reference to the business or undertaking carried on by the trustee of the trust on behalf of the trust.

(5) In this Division —“arrangement” includes any formal or informal scheme, arrangement or understanding, and any trust whether express or implied;

“business trust” has the meaning given by section 2 of the Business Trusts Act (Cap. 31A);

“control” includes control as a result of, or by means of, any trust, agreement, arrangement, understanding or practice, whether or not having legal or equitable force and whether or not based on legal or equitable rights;

“corporation” has the meaning given by section 4(1) of the Companies Act;

“entity” means any sole proprietorship, partnership, corporation or other body of persons, whether corporate or unincorporate;

“equity interest” means —(a)

in relation to a corporation — a voting share in that corporation;

(b)

in relation to an entity other than a corporation — any right or interest, whether legal or equitable, in that entity (by whatever name called) which gives the holder of that right or interest voting power in that entity;

(c)

in relation to a business trust — a unit in that business trust; and

(d)

in relation to a trust other than a business trust — any right or interest, whether legal or equitable, in that trust (by whatever name called) which gives the holder of that right or interest voting power in that trust;

“hold a position” includes holding the position for someone else;

“relevant position”, in a business of an applicant or a licensee, means the position of a responsible executive and includes a position (however styled) whose holder participates in the management of the business;

“share”, in relation to a corporation, means a share in the share capital of the corporation and includes stock into which all or any of the share capital of the corporation has been converted;

“treasury share” has the meaning given by section 4(1) of the Companies Act;

“trustee-manager” and “unit” have the meanings given by section 2 of the Business Trusts Act;

“unitholder” means a person who holds units in a business trust;

“voting share” has the meaning given by section 4(1) of the Companies Act but does not include a treasury share.

—(1) For the purposes of this Act, a person is a “close associate” of an applicant or a licensee if —(a)

the person alone —(i)

holds 5% or more of the total equity interests in; or

(ii)

is in a position to control 5% or more of the voting power in,

the applicant or licensee if it is an entity, a business trust or trust; or

(b)

the person holds or will hold any relevant position in the business of the applicant or licensee relating to any regulated activity.

(2) A reference in this Division to the control of a percentage of the voting power in an entity, business trust or trust is a reference to the control, of that percentage of the total number of votes that might be cast in a general meeting of the entity, a general meeting of the unitholders of the business trust, or a general meeting of the beneficiaries of the trust, as the case may be.

(3) In ascertaining a person’s control of the percentage of the total number of votes that might be cast at a general meeting mentioned in subsection (2), the number of votes that the person is entitled to cast at the meeting by reason of having been appointed a proxy or representative to vote at the meeting is to be disregarded.

(4) In this Part —(a)

a reference to the business or undertaking of a business trust is a reference to the business or undertaking carried on by the trustee‑manager of the business trust on behalf of the business trust; and

(b)

a reference to the business or undertaking of a trust is a reference to the business or undertaking carried on by the trustee of the trust on behalf of the trust.

(5) In this Division —“arrangement” includes any formal or informal scheme, arrangement or understanding, and any trust whether express or implied;

“business trust” has the meaning given by section 2 of the Business Trusts Act (Cap. 31A);

“control” includes control as a result of, or by means of, any trust, agreement, arrangement, understanding or practice, whether or not having legal or equitable force and whether or not based on legal or equitable rights;

“corporation” has the meaning given by section 4(1) of the Companies Act;

“entity” means any sole proprietorship, partnership, corporation or other body of persons, whether corporate or unincorporate;

“equity interest” means —(a)

in relation to a corporation — a voting share in that corporation;

(b)

in relation to an entity other than a corporation — any right or interest, whether legal or equitable, in that entity (by whatever name called) which gives the holder of that right or interest voting power in that entity;

(c)

in relation to a business trust — a unit in that business trust; and

(d)

in relation to a trust other than a business trust — any right or interest, whether legal or equitable, in that trust (by whatever name called) which gives the holder of that right or interest voting power in that trust;

“hold a position” includes holding the position for someone else;

“relevant position”, in a business of an applicant or a licensee, means the position of a responsible executive and includes a position (however styled) whose holder participates in the management of the business;

“share”, in relation to a corporation, means a share in the share capital of the corporation and includes stock into which all or any of the share capital of the corporation has been converted;

“treasury share” has the meaning given by section 4(1) of the Companies Act;

“trustee-manager” and “unit” have the meanings given by section 2 of the Business Trusts Act;

“unitholder” means a person who holds units in a business trust;

“voting share” has the meaning given by section 4(1) of the Companies Act but does not include a treasury share.